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Supreme Court Vote to Allow Evidence Found Using Improper Police Entry

By Linda Greenhouse


Evidence found by police officers who enter a home to execute a search warrant without first following the requirement to “knock and announce” can be used at trial despite that constitutional violation, the Supreme Court ruled Thursday.

The 5-4 decision left uncertain the value of the “knock-and-announce” rule, which dates to 13th-century England as protection against illegal entry by the police into private homes.

Justice Antonin Scalia, in the majority opinion, said that people subject to an improper police entry remained free to go to court and bring a civil rights suit against the police.

But Justice Stephen G. Breyer, writing for the dissenters, said the ruling “weakens, perhaps destroys, much of the practical value of the Constitution’s knock-and-announce protection.” He said the majority’s reasoning boiled down to: “The requirement is fine, indeed, a serious matter, just don’t enforce it.”

The decision followed a reargument less than a month ago, with the newest justice, Samuel A. Alito Jr., evidently casting the decisive vote. Breyer’s dissenting opinion was clearly drafted to speak for a majority that was lost when Justice Sandra Day O’Connor left the court shortly after the first argument in January.

The justices’ lineup in this case, which upheld a Detroit man’s conviction for drug possession, may become a familiar one as the court proceeds through its criminal-law docket. In addition to Alito, those who joined the majority opinion by Scalia were Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Anthony M. Kennedy. Breyer’s dissenting opinion was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

The decision answered a question that the court had left open in 1995, when it held in a unanimous opinion by Thomas that the traditional expectation that the police should knock and announce their presence was part of what made a search “reasonable” within the meaning of the Fourth Amendment. The amendment bars unreasonable searches.

In that case, Wilson v. Arkansas, the court declined to say what the remedy should be for a violation of the knock-and-announce rule. Ordinarily, evidence that is seized illegally — in the absence of a warrant, for example — may not be used at trial, under what is known as the exclusionary rule.

By a strong majority, most state and federal courts that have considered the issue have applied the exclusionary rule to violations of the knock-and-announce requirement. In its decision on Thursday, Hudson v. Michigan, No. 04-1360, the Supreme Court upheld a ruling by the Michigan Court of Appeals, one of the few courts to have rejected the exclusionary rule in this context.

In the case, the Detroit police had a warrant to search for drugs in the home of Booker T. Hudson Jr. At his unlocked door, they announced their presence, but did not knock and waited only three to five seconds before entering, not the 15 to 20 seconds suggested by the Supreme Court’s precedents.